TMI Blog2001 (3) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... to v. Antonio Vicente Da Fonseca and Others, AIR (1979) SC 984 came to a conclusion that the body of the provisions in the Portuguese Civil Code dealing with the subject of limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only, is the local law within the meaning of Section 29(2) of the Limitation Act, 1963. This Court further held that these provisions of the Portuguese Civil Code have to be read in the Limitation Act, 1963, as if the schedule to the Limitation Act stands amended mutatis mutandis and question of any repugnancy does not and cannot arise. The earlier decision [Justiniano (Supra)], obviously was on an inspiration from the provisions of Section 3 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration), Act, 1965 by which both the Code of Civil Procedure, 1908 and the Arbitration Act, 1940 were extended to the Union Territory of Goa, Daman and Diu and it is on this perspective this Court is paragraph 10 of the Report observed : ......Section 4 of the Act repeals so much of the law in force in the Union territory of Goa, Daman and Diu as corresponds to the Code of Civil Procedure 1908 or the Arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the period of limitation will be the provision in the Code itself. (iv) If, however, the cause of action has arisen outside the Portuguese law, then that part of the law dealing with the period of limitation will not apply; on the other hand, a suit filed on the basis of the cause of action arising outside the Portuguese law will be governed by the provisions of the Indian Limitation Act, 1963 . During the course of hearing of these appeals, the reasoning s as set forth in Cadar Construction's case (supra) have been relied upon and it was contended that in any event the Portuguese Civil Code being not a special legislation pertaining to the issue of limitation, the Code, cannot be termed to be a special law or local law within the meaning of Section 29(2) of the Limitation Act and a bench of two judges of this Court hearing the matter, upon assessment of the situation, found the submission to be attractive and as such, there was a felt-necessity for reconsideration of the Judgment in Justiniano's case (supra) by a larger Bench. It is in terms therewith that this Bench stands constituted for reconsideration of the issue of applicability of the provisions of Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appeals also had the same fate as noticed herein before and hence the appeals before this Court upon the grant of leave. Admittedly, Portuguese Colonial possession in the country to wit: Goa, Daman and Diu islands became part of the territory of India from 20th December, 1961 and by the Constitution Twelfth (Amendment) Act, 1962, the territories of Goa, Daman and Diu were included as the Union Territory with effect from the said date (20th December, 1961). It is noteworthy that prior to its incorporation, there was existing Portuguese Civil Code containing details of multiple laws admittedly, including the laws pertaining to limitation. Probably in order to assess the situation comprehensively, a look at the provisions would have been better at this juncture, but by reason of the factum of admitted state of facts as regards its contents, being multiple laws and since Mr: Sharma's reliance on Article 535 only in support of his contention, the same is set out herein below for its true effect. Article 535 reads as below: Section III Negative Prescription Article 535-Whoever has assumed an obligation to do for, or to do something to another, stands relieved of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority. (2) For the purpose of facilitating the application of any such law in relation to the administration of Goa. Daman and Diu as a union territory and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may, within two years from the appointed day, by order, make such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient and thereupon, every such law shall have effect subject to the adaptations and modifications so made. In this context, it has been contended that since there has been no specific legislation containing the repeal of the Civil code, the limitation as prescribed under the Portuguese Civil Code shall continue to be operative and hence the suit cannot be termed to be barred by the doctrine of limitation. Admittedly Portuguese Civil Code is a complete Code in itself detailing therein various rights and liabilities of the citizens and obviously the limitation in the enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... containing the provisions of limitation in Chapter III regulating the contracts in the Portuguese Civil Code which however, stands replaced by the Indian Contract Act. The prescribed period for limitation pertaining to the contracts being in the same Chapter under Contract Act cannot be said to be surviving as an independent provision rather than going along with the other provisions of the contract which by reason of adaptation of Contract Act stands replaced. It is thus cannot but be said to be an implied repeal. The necessity of having an express repeal was never felt by reason of the factum of adaptation of Indian Contract Act in so far as Chapter II is concerned. Either the Chapter survive in its entirety or it perishes in its all spheres - it is one chapter dealing with contract and prescribed the period of enforcement of the same: no dissection is possible. The view expressed by the learned Single Judge in Ganoxama Bicy Nay Vaingonkar v. Joao Manuel Dias, 1983 (First Civil Appeal No. 27 of 1975); (Bom. at Panaji-Goa) stands accepted by Division Bench in Cadar Construction (supra). The High Court in the last noted decisions placed reliance on Articles 689 and 690 of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar Construction (supra) pertaining to the interpretation of the Portuguese Civil Code, does not arise. The other aspect of the matter ought also to be noticed to wit, the incorporation of Negotiable Instrument Act and Contract Act by a notification in the State of Goa, Daman and Diu. The cause of action of the suit viz. money lent and advanced in terms of the agreement stands squarely governed by the Contract Act read with the Negotiable Instrument Act by reason of the admitted executed of a Promissory Note and as such cannot be said to be governed by the Code. In the event the right to initiate the proceedings goes out of the ambit of the Code, the latter cannot governed its enforceability. The Civil Code is a complete Code in itself; its applicability was not restrictive in any way whatsoever prior to the issuance of notification adapting into a State law, the two statutes named above. The Portuguese Civil Code cannot be termed to be a statute of limitation, as such it cannot have its operation extended to prevent the enforcement of independently existing rights of action. The Civil Code, as noticed above cannot but be ascribed to be a compilation of comprehensive law in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed. The doctrine of implied repeal has to take its place in the facts of the matter under consideration. Having regard to the factum of Article 535 being a mere procedural aspect and not being a substantive right, as such we are not contemplating the situation under Private International Law, but the distinction between substantive and procedural law has a meaningful existence herein. The doctrine of implied repeal, we are conscious of the fact, is not to be favoured but where a particular provision could not have been intended to subsist and if let subsisting, the resultant effect would be an absurdity. Courts cannot but declare it to be so on the ground of repeal by implication. Let us at this juncture try to appreciate the total effect, in the event we allow Article 535 to remain subsisting : The right to sue on a contract arising in any part of the country excepting the State of Goa stands extinguished after the expiry of the period of limitation as prescribed by under the Limitation Act. The Appellant Bank has its branches throughout the country, in a situation identical, appellant Bank will be entitled for the enforcement of its claim even the period of limitation is presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the High Court in Cadar Construction (supra) that the Portuguese Civil Code could not provide for, a period of limitation for a cause of action which arose outside the provisions of that Code, stands approved. A contra approach to the issue will not only yield to an absurdity but render the law of the land wholly inappropriate. There would also be repugnancy in so far as application to the Limitation Act in various States of the Country is concerned; whereas in Goa, Daman and Diu, the period of limitation will be for a much larger period than the State of Maharashtra - the situation even conceptually cannot be sustained having due regard to the rule of law and jurisprudential aspect of the Limitation Act. Needless to record that our concurrence to the observations of the High Court in regard to a special Law of Limitation is provided for enforcement of the rights arising under that Code itself, is by reason of the fact that Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it (reference may be made to the decision of this Court in C. Beepathuma and Others v. Velasari Shankaranarayana Kadambolithaya and Others, AIR (1965) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that on the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano's case (supra) stand overruled. There is one general law of limitation for the entire country being the Act of 1963, and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman Diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific mention of repealing statute (since 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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